Lawyer for Emilio Fusco files motion to trim down split verdict after April trial

NEW YORK — A defense lawyer for convicted mobster Emilio Fusco has petitioned a judge to trim down a split verdict delivered in early May after a three-week mob murder trial.

The panel acquitted Fusco of the 2003 gangland murders of Springfield Mafia captain Adolfo “Big Al” Bruno and low-level associate Gary D. Westerman. A previous jury in a separate trial found Westerman was shot and bludgeoned to death and his body dumped into an 8-foot hole in a wooded lot in Agawam, Mass., to be recovered by law enforcement officials nearly seven years later.

Fusco, 43, an Italian immigrant from Longmeadow, Mass., also was cleared of extorting Springfield strip club owner James S. Santaniello and other shake-down plots, but was convicted of racketeering conspiracy, heading a marijuana distribution conspiracy, extortion conspiracy and interstate travel in aid of racketeering.

Defense lawyer Richard B. Lind recently filed a motion to vacate all Fusco’s convictions but the racketeering conspiracy, on the grounds the judge’s jury instructions were flawed, the convictions were inconsistent with certain of the acquittals and the evidence was insufficient to convict.

Although dodging the murder convictions and potential life sentences was a major coup for the defense, Fusco still faces a statutory maximum sentence of 45 years at his sentencing, scheduled for Sept. 21 before Judge P. Kevin Castel in U.S. District Court in Manhattan.

The outer limits of the advisory sentencing guidelines led one federal prosecutor to snipe: “I don’t know what he’s so happy about,” as Fusco and Lind rejoiced while the panel delivered its verdicts on May 3.

Fusco had been accused of roles in the murders, which played out in Western Massachusetts within three weeks of each other in November 2003 as a power shift was up-ending the organized crime landscape. Bruno and Westerman also were rumored to be government informants. Witnesses at trial testified the innuendo was true for Westerman but not for Bruno, who was gunned down in a dark parking lot by paid hit man Frankie Roche.

The trial included testimony from Roche, onetime Springfield mob up-and-comer Anthony J. Arillotta, and Felix Tranghese, of East Longmeadow, another so-called “made man” in the New York-based Genovese crime family. Those three helped win murder convictions against three co-defendants in a parallel trial in the same courtroom in 2011.

Springfield criminal defense lawyer John Pucci, a former federal prosecutor, said the chances of Lind winning reversals based on a flawed jury charge argument are slim. At the close of evidence and arguments in every criminal jury trial, judges offer lengthy legal instructions to jurors after a thorough vetting from lawyers on both sides of the case.

“The charge generally is a much more organized chapter of the trial process. The fog of war is not as dense in that moment,” Pucci said, adding that even so: “The likelihood of a motion like that succeeding, even on appeal, is modest under any circumstances.”

If Lind were to win the motion, however, Fusco’s maximum sentence would be pared down to 20 years.

New York attorney Lawrence Hochheiser, who represented lead defendant and onetime New York Genovese acting boss, Arthur Nigro, in the 2011 trial, said Fusco is facing a tough judge at sentencing.

"I'm not an expert on Judge Castel but he's a difficult person, so I assume he'll be a difficult sentencer," said Hochheiser.

He added that, under federal sentencing guidelines, judges may punish defendants for misdeeds they were acquitted of or never charged with in the first place - if judges find the allegations credible under a fairly low legal standard nonetheless.

Nigro was convicted of Bruno's murder along with former Western Massachusetts mob enforcers, Fotios and Ty Geas; all are serving life sentences.

In addition to Fusco’s sentencing being scheduled, a date has been set for Tranghese, who testified in both trials that he lobbied New York mobsters to green-light Bruno’s murder and carried the order back to Western Massachusetts. Tranghese will be sentenced by Castel on Oct. 19. He pleaded guilty to Bruno’s murder in 2010 and faces a maximum of life in prison, but will likely get a steeply reduced prison sentence in exchange for his cooperation, as do virtually all productive mob informants.

Meanwhile, sentencing dates have not been scheduled for fellow cooperators Roche, Arillotta and John Bologna, of Westchester, N.Y. Roche and Arillotta were called by the government to testify about the murder plots.

Bologna, once acting boss Arthur Nigro's closest confidante, was not called to testify as he was found to have committed a string of extortion and murder plots while intermittently serving as a confidential informant for the FBI dating back to the 1990s, according to records and court testimony.

Prosecutors would not comment on why the remaining three have not been teed up for sentencing. But, Pucci said they may not have outlived their usefulness to the government and could be involved as witnesses in ongoing investigations.

“Oftentimes when there are cooperating witnesses, their sentencing dates are continued until they have completed their courses of cooperation so that the judge at sentencing can get a complete picture of what they’ve done for the government,” Pucci said.

Roche pleaded guilty to the Bruno murder in federal court in Springfield, Mass., in 2008 while the others pleaded guilty to that and other crimes later on in Manhattan, after the case was transferred here. Roche will be sentenced in Massachusetts, according to his lawyer.